Jury gets earful as music-sharing suit winds down

It was Kurt Cobain versus Britney Spears in U.S. District Court in Boston this morning.

As the copyright infringement case against Boston University grad student Joel Tenenbaum wound down, Harvard professor and defense attorney Charles Nesson summoned an expert witness to demonstrate how easy it is to buy a song for 99 cents on Amazon.com.

At Nesson’s request, the witness previewed a copy of Nirvana’s “Come as You Are,” holding a laptop up to a microphone so that Cobain’s plaintive voice rang through the courtroom. He then bought and downloaded a copy of the song, now duly stored on some server within the federal court system.

During his closing, Nesson, wearing a green T-shirt under a rumpled linen blazer, said it is true that illegal file-sharing — which Tenenbaum has admitted doing — has drained money from record companies, making it harder for them to finance “a system that produces really big stars. Britney Spears is someone who has been packaged and produced.”

The implied comparison with Nirvana’s Cobain was striking: the man who once appeared on the cover of Rolling Stone wearing a T-shirt with the message “corporate magazines still suck” against the pop diva better known these days for her spectacular divorce than for her singing. The first is music for music’s sake, Nesson suggested, the second is music for profit.

Nesson said the jurors had spent several days hearing music “as a piece of property. I want you to hear music as music.”

But just as he was about to signal an assistant to press play on a CD, Judge Nancy Gertner said he had run out of time. Asked afterward which song he planned to play, Nesson said it would have been “Come as You Are,” in which Cobain sings, “Come as you are, as you were, as I want you to be.”

Asked why, Nesson said, “Because that’s how we are. I’m here in a T-shirt. Joel is here as he is. We just are who we are.”

“And we aren’t fake,” Tenenbaum added.

The jury began deliberating shortly after 1:30 p.m., charged with deciding what penalty Tenenbaum should pay for downloading 30 songs. The price tag could be anywhere from $22,500 to $4.5 million, though Nesson in his closing hinted at a form of jury nullification that would assess 99 cents per song.